State Leaves Maui Streams with Minimal or No Flow

Dissenting Water Commissioner declares a failure of state's public trust duties

June 10, 2010

Maui, HI —

Today, the State of Hawai'i's Commission on Water Resource Management issued its final ruling in the long-running battle to restore flow to four major streams on Maui known as Na Wai 'Eha, or "The Four Great Waters" of Waihe'e River and Waiehu, 'Iao, and Waikapu Streams. The final decision was issued more than a year after a proposed decision in April 2009 recommended restoration of 34.5 million gallons a day (mgd) to the streams, or about half of the total stream flow of 60 to 70 mgd. In the final decision, a majority of the commission, with one commissioner dissenting, decided to reduce the amount of restoration to only 12.5 mgd and leave two of the four streams, 'Iao and Waikapu, in their completely dewatered state, without restoration of any flow. This 12.5 mgd is even less than the 16.5 mgd one of the diverters, Hawaiian Commercial & Sugar (HC&S), a division of Alexander & Baldwin, Inc. (A&B), had argued as a last-ditch alternative to the initial recommendation.

`Iao Stream flowing naturally above all diversions at
the `Iao Needle State Park.

A diversion on Waihe`e River.

Bone-dry `Iao Stream, downstream of diversions.

"This is a miscarriage of justice, and it will not stand," said Earthjustice attorney Isaac Moriwake, "In the 21st century, the commission majority is still letting plantation politics, rather than the law, rule our most precious resource." Earthjustice represents Maui community groups Hui o Na Wai 'Eha and Maui Tomorrow Foundation, who initiated this legal action six years ago, in June 2004, to restore flow to Na Wai 'Eha streams to support native stream and nearshore resources and community uses such as traditional wetland kalo farming.

The dissenting commissioner, Lawrence Miike, J.D., M.D., issued a detailed and strongly worded opinion criticizing the majority for turning the commission's public trust responsibilities "on their heads," leaving the streams mere "leftovers," and treating streams as "reservoirs for future offstream uses." "By this decision, the majority has failed in its duties under the Constitution and the State Water Code as trustee of the state's public water resources," he concluded.

Commissioner Miike served as the Hearings Officer in this case and presided over the lengthy administrative trial that extended from December 2007 to October 2008 and involved dozens of witnesses and hundreds of pages of exhibits and briefs. He is also the most experienced member of the commission, having also served as the Hearings Officer and commissioner in the landmark Waiahole Ditch case on O'ahu, in which the Hawai'i Supreme Court strongly reaffirmed that flowing streams are a public trust resource and reversed the commission twice for failing to provide sufficient projection for public rights and uses in instream flows. Commissioner Miike cited the Court's rulings and his experience in the Waiahole case in his dissent.

John Duey, President of Hui o Na Wai 'Eha explained that "Hui members are shocked that the commission majority re-wrote the final decision based on politics, not the law, and over the strong objection of the only commissioner to sit through months of proceedings and review all of the evidence. Even though the commission majority succumbed to plantation pressure, we believe the law and history will vindicate us."

The Na Wai 'Eha streams are perennial waters that traditionally supported a vibrant native aquatic ecosystem and a Native Hawaiian community cultivating the largest continuous area of wetland kalo fields in the Hawaiian Islands. Currently, two private companies drain the streams dry: HC&S, and Wailuku Water Company (WWC), the remnant of C. Brewer & Co.'s former Wailuku Sugar plantation, which sold all its former farmlands for development and is now pursuing the business of selling the diverted stream water to the public.

This case has drawn many comparisons to the Waiahole case. Like Waiahole, Na Wai 'Eha involves local community groups seeking to ensure lasting protection for streams in the face of unchecked demand for industrial agriculture and urban development. Unlike in the Waiahole case, where the former O'ahu Sugar plantation land was converted to diversified agriculture, here, the former Wailuku plantation sold off its lands and has sought to keep control of the water as an independent source of private profit.

With the commission's final decision, this case has acquired another, dubious parallel to Waiahole. In the Waiahole case, the Hawai'i Supreme Court, in addition to ordering better protection of stream flows, chastised the commission's proceedings as being tainted by external political pressure at the eleventh hour. Similarly, in this case, during closing arguments on the Commission's proposed decision in October 2009, HC&S avoided arguing the actual case through its attorney and instead had an A&B executive threaten the shutdown of the plantation and layoffs of all the workers.

"We are very disappointed by this short-sighted political decision that caters to corporate interests while denying good environmental stewardship and the rights of Native Hawaiians," said Irene Bowie, Executive Director of Maui Tomorrow. "In this time of long-term drought when our aquifers are so desperately in need of replenishing, this decision is even more frustrating."

"Ten years after Waiahole, the majority of the commission continues to find new ways to short-change communities fighting for public rights to water," said Moriwake. "In the end, politics and expediency cannot prevail. We will not rest until justice, and the waters of Na Wai 'Eha, flow for present and future generations."

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